The U.S. Court of Appeals for the Ninth Circuit (covering AK, AZ, CA, HI, ID, MT, NV, OR, WA, and Guam) recently ruled in favor of AGC of America’s position in a withdrawal liability case. In an amicus brief submitted in August 2025, AGC argued that demolition and abatement work fall within the definition of “building and construction industry” as the term is used in the Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Multiemployer Pension Plan Amendments Act (MPPAA). In its January 5, 2026, opinion, the court agreed.
Case Background
Walker Specialty Construction (Walker), a small, family-owned company based in Washington state, had been performing asbestos abatement, demolition, and other specialty and environmental services in Nevada under a project labor agreement and under an AGC chapter-negotiated master labor agreement with the Laborers. The company ceased all operations in Nevada in 2019 and continued working only in Washington.
The Laborers pension fund in Nevada to which Walker had been contributing then assessed the company with over $2.8 million in withdrawal liability. Walker claimed exemption under the construction-industry exemption, but the trust fund argued that this exemption does not apply to the type of work Walker performed. The trust fund’s narrow interpretation of “building and construction industry” for withdrawal liability purposes only includes work involving the construction or improvement of structures, not demolition or removal.
After an arbitrator upheld the trust fund’s narrow interpretation, Walker sought review in federal district court and won. The trust fund then appealed to the Ninth Circuit.
Circuit Court Decision
Consistent with AGC’s and Walker’s arguments, the Ninth Circuit held that Walker performed work in the “building and construction industry” under the MPPAA and is entitled to the industry exemption from withdrawal liability.
While the term “building and construction industry” is not defined in the MPPAA, the term had a well-settled meaning when MPPAA was enacted as the identical term is also used in the Taft-Hartley Act amendments to the National Labor Relations Act. For over a decade prior to enactment of the MPPAA, the National Labor Relations Board (NLRB) had defined the term to include not only the erection of new buildings but also the maintenance, repair, and alteration that are essential to a building or a structure’s usability. In its 1969 ruling in Zidell Explorations, the NLRB specifically held that a company engaged in the dismantling of a structure is an employer in the “building and construction industry.” Given that Congress was aware of this use of the term when it enacted MPPAA, the court infers that Congress intended to incorporate the NLRB’s definition when it used the same language in MPPAA.
The court noted that other circuits have taken the same approach, looking to the NLRB’s definition to interpret the MPPAA. The court further noted that, while the MPAA and Taft-Hartley Act govern different subjects (pension plans vs. unfair labor practices), both regulate the employment relationship and both use the term “building and construction industry” for the same reason: the uniquely transient nature of employment in the industry.
Having adopted a broad definition of the term “building and construction industry” under MPAA, the court concluded that Walker’s asbestos abatement work falls within the definition because it involves the “maintenance and repair…of immobile structures…which become integral parts of the structure and are essential to their use for any general purpose.” Walker’s work required substantial alteration to buildings, not merely scraping surfaces, as the trust argued. Walker’s work was virtually indistinguishable from the demolition work in Zidell Explorations, the court found.
Because substantially all of Walker’s employees worked in the “building and construction industry” as interpreted by the court, the court held that Walker qualifies for the exemption from withdrawal liability and granted the company summary judgment.
For more info, contact Denise Gold, Vice President, Corporate & Labor Legal Affairs, at denise.gold@agc.org or (703) 837-5326.
AGC’s involvement in the case was made possible by donations to the association’s Construction Advocacy Fund. To learn more about the fund and to make a contribution in support of AGC’s advocacy efforts, visit constructionadvocacyfund.agc.org.
AGC thanks Andy Martone and his team at Martone Legal LLC for their work in drafting AGC’s amicus brief in the case.